ITU's Sticky WCIT: Do New Rules Cover Just Big Telcos... Or Absolutely Everyone?

from the that-makes-a-big-difference dept

As the ITU's World Conference on Telecommunications (WCIT) continues in Dubai, a rather important "debate" has slowed any progress to a crawl. The key thing that is being worked on, of course, is new International Telecommunications Regulations (ITRs). Most of the debates we've talked about to date have been about what kind of mandate the ITU might have on things outside its direct areas of interest, as indications were that they wanted to expand the ITRs to cover things like the internet, online security and more. But a key fight shows how it goes beyond even just that. The big debate at WCIT right now is over a simple definition that could have massive implications: will the ITRs apply to "recognized operating agencies" or just "operating agencies." Seems simple, right? Not really.

Currently, the ITRs apply to "recognized operating agencies" which tend to be the huge telcos, often either state owned, or formerly state owned (and often still closely aligned with the government). Basically, the big national telcos that everyone is aware of. Those are considered "recognized operating agencies." But, if they take out the word "recognized" then it would cover: "any individual, company, corporation or governmental agency which operates a telecommunication installation."

Have you set up a WiFi network in your home? Well, then, you just might be included in that definition. See how that one little word could make a massive difference in the impact of the new ITRs? Basically, it's a question of whether or not the new rules will apply to the giant national telco companies... or everyone. Countries are taking sides and there's a bit of a stalemate, as noted by .nxt:

Lined up against this measure [of expanding the coverage to everyone] are Canada, CEPT, Citel, Japan, Korea, Mexico, Poland and the United States. For it are the Arab States, African States, Brazil, India, Iran, Philippines and RCC.

The conference chair is now pushing for a sort of "compromise" that certainly sounds a lot like siding with those in favor of the massively expanded definition. He's in favor of using "operating agencies" rather than "recognized operating agencies" but then trying to allow for "exclusions" to the definition by pointing to Article 38 of the ITU Constitution. Of course, that doesn't clarify anything. It just makes things more confusing.

Even if Article 38 could be used to "exclude" certain entities -- say, individuals and small businesses -- there would still be a massive problem. Beyond the fact that these rules would apply to many more companies who have no idea what's going on, it's a fundamental shift in thinking about the ITRs. It goes from rules that are limited to just a few giant telcos to ones that are de facto inclusive of just about everyone... leaving only "exceptions." In some ways, it reminds me of the switch in copyright from an opt-in system, to one in which everything was automatically covered with just a few "exceptions." That sort of thing has been a disaster on the copyright front, and would be an equal, if not bigger, disaster for telecom rules.

So, exact usage of ONE word is important...

But Megaupload serving out terabytes of obviously infringing content that someone else created, and you can't see a CLEAR relation that adds up to ILLEGALITY, so NO PROBLEM. Gotcha. -- And for the hard of understanding fanboy-trolls, NO, I'm not for ITU wrongness, either.

Re: So, exact usage of ONE word is important...

First off, many legal cases, including US Supreme Court cases, have been built around one word or phrase. Second, while Megaupload did host infringing content, it also hosted legitimate content and provided rightsholders with a DMCA takedown option, thus granting it legal immunity under the DMCA, which can only be negated by proving that its sole use was infringing upon copyrights, which, as stated above, is not the case. Third, you are attempting to equate two inequivalents, which is to say that the wording being discussed is part of a legal article, while the use of Megaupload for copyright infringement is not part of a legal article and, for that matter, does not implicate Megauupload in the infringement it was used for. We are discussing law here, so if you have any legal basis for your claims, please, do share them, because I would be delighted to hear them.

Re: Re: So, exact usage of ONE word is important...

thus granting it legal immunity under the DMCA, which can only be negated by proving that its sole use was infringing upon copyrights

Not exactly. Safe harbor can be removed for a number of reasons even if the service is is primarily used for noninfringing purposes. For example, if the site operators are aware of ongoing specific infringement and do nothing to stop it, if they engage in direct infringement, if they market the site as a tool to be used for infringement, and so on.

Re: Re: Re: So, exact usage of ONE word is important...

That is correct, which is why I left my above statement sufficiently ambiguous to cover all those except specific knowledge of specific infringement and failure to act, as it is extremely difficult to prove this knowledge provided a website has a DMCA takedown option. I did not wish to go into the nuances of the quagmire that is copyright law.

'the switch in copyright from an opt-in system, to one in which everything was automatically covered with just a few "exceptions." That sort of thing has been a disaster.'

and we can all thank the good ol' USA for this. had it not started allowing individual industries then bodies to rewrite certain laws with the aid of paid for politicians, this mess would not have existed. as it is, it is getting progressively worse. the USA are complaining atm about the lack of transparency over the ITU 'negotiations', then does an even worse job with TPP. considering when all this lot started, who started it (the entertainment industries) and you can see the total crap shoot we now have. when SOPA/PIPA, then ACTA came on the scene with no public representation, it must have been pretty obvious that things were only going to go down hill from there. this 'it aint broke, so we're going to fix it anyway' attitude is a real help. when there is money to be made by someone, all sense and common sense disappears. something that has operated interference free without any major issues suddenly becomes the worse thing on the planet unless it is interfered with. bloody ridiculous! wont be long before the 'net is a useless 'also ran' completely fucked up and only run underground by a few real clever people. thank you, all you greedy arse holes!!

The Berne Convention was first adopted on September 9, 1886, in Berne, Switzerland . . . .

The Berne Convention established several principles of international copyright that have remained through all of the treaty's versions. . . . . Third, the convention provides for automatic protection of copyrighted works as soon as they are created, without any required formalities, such as notice or registration.

The United States and the Berne Convention

. . . the United States resisted joining the Berne Convention for over a century. . . .

By the 1980s, the United States was still one of the few major developed countries not abiding by the Berne Convention. When it became clear that the United States' role as a pariah in international copyright circles had begun to erode its position in reaching other trade agreements concerning intellectual property, Congress finally passed the Berne Convention Implementation Act of 1988 . . . .

So, much of the rest of the world joined an 1886 regime, but the United States held out for over a century. Then in 1988, the “international pariah” U.S. finally gave in under pressure.

And you blame the U.S.?

You think we should have just nuked the Swissies and their friends before giving in? Never surrender, and all that? Fight them in France? Fight them in the seas and oceans? Fight them on the beaches and on the landing grounds? Fight in the fields and in the streets? Fight in the hills? Never surrender! Nuke them into parking lots! Parking lots!

the best answer would seem to be to totally ignore all the ITU is saying and wants to do. if they have a problem with it, take their ball away. i am sure there will be other balls to play with that suddenly appear!